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`Case 3:21-cv-00812-TWR-JLB Document 224 Filed 03/08/23 PageID.5502 Page 1 of 9
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF CALIFORNIA
`
` Case No.: 21-cv-00812-TWR-JLB
`
`ORDER DENYING WITHOUT
`PREJUDICE MOTIONS TO FILE
`DOCUMENTS UNDER SEAL
`
`[ECF Nos. 180, 194, 197, 207, 210, 213]
`
`Defendant.
`
`TACTION TECHNOLOGY, INC.,
`Plaintiff,
`
`v.
`APPLE INC.,
`
`AND RELATED COUNTERCLAIM.
`
`
`
`
`Before the Court are six motions to file documents under seal filed by Plaintiff
`Taction Technology, Inc. (“Plaintiff”), Defendant Apple Inc. (“Defendant”), and non-
`parties Kenosha Investments LP (“Kenosha”) and Gronostaj Investments LLC
`(“Gronostaj”). (See ECF Nos. 180, 194, 197, 207, 210, 213.)
`//
`//
`//
`//
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`No. 181), along with the entirety of Exhibits B through E1 (ECF Nos. 181-1, -2, -3, -4).
`(ECF No. 180.) As the Motion seeks to protect, inter alia, Plaintiff’s privilege logs, the
`Court directed Plaintiff to file a response addressing the legal basis for filing under seal.
`(ECF No. 191.) On February 15, 2023, Plaintiff filed its Response in Support of
`Defendant’s Motion to File Documents Under Seal. (ECF No. 193.)
`On the same day, Plaintiff also filed a renewed motion to file under seal portions of
`Plaintiff’s Response to Defendant’s Ex Parte Motion (ECF No. 195), portions of Gavin
`Snyder’s Declaration (ECF No. 195-1), and all of Exhibit A2 (ECF No. 195-2). (ECF No.
`194.) Plaintiff’s 194 Motion seeks to protect the Plaintiff’s privilege logs and similar
`deposition testimony as Defendant’s 180 Motion. (Compare ECF Nos. 180, 181 with ECF
`Nos. 194, 195.)
`B. Motions to Seal All Parties’ Supplemental Briefs
`On February 10, 2023, the Court issued a supplemental briefing schedule regarding
`Kenosha and Gronostaj’s Motion to Quash Defendant’s Subpoenas (ECF No. 149). (ECF
`No. 183.) Pursuant to the Court’s Order, on February 17, 2023, Defendant filed a motion
`to file under seal portions of its Supplemental Brief (ECF No. 198). (ECF No. 197.) On
`February 24, 2023, Kenosha and Gronostaj filed a motion to file under seal portions of
`their Response to Defendant’s Supplemental Brief (ECF No. 211). (ECF No. 210.) On
`the same day, Plaintiff filed a motion to file under seal portions of its Response to
`Defendant’s Supplemental Brief (ECF No. 214). (ECF No. 213.)
`All three Motions seek to protect information the parties assert contain Kenosha and
`Gronostaj’s “sensitive” and “confidential” business information. (ECF Nos. 197 at 2; 210
`
`
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`ECF Nos. 181-1 through 181-3 are Plaintiff’s privilege logs. ECF No. 181-4 is a
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`transcript of the deposition testimony taken from Dr. James Biggs, Plaintiff’s Founder and
`Chief Technology Officer, on February 9, 2023.
`2
`ECF No. 195-2 is a transcript of Dr. Biggs’ deposition testimony from February 10,
`2023.
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`at 2; 213 at 2.) Additionally, Kenosha and Gronostaj seek to seal information regarding
`Plaintiff’s privilege logs. (ECF Nos. 210 at 2; 211 at 2, 4.)
`C. Motion to Seal Defendant’s Motion to Compel
`On February 21, 2023, Defendant filed a motion to file under seal portions of its
`Motion to Compel (ECF No. 208) and the entirety of Exhibits B through F (ECF Nos. 208-
`1, -2, -3, -4, -5) and Exhibit H3 (ECF No. 208-6). (ECF No. 207.)
`II. Legal Standard
`
`“Historically, courts have recognized a ‘general right to inspect and copy public
`records and documents, including judicial records and documents,’” which is “justified by
`the interest of citizens in ‘keep[ing] a watchful eye on the workings of public agencies.’”
`Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (quoting
`Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597, 598 (1978)). As such, a party seeking
`to seal a judicial record attached to a dispositive motion must “articulate[] compelling
`reasons supported by specific factual findings” that can surmount the “strong presumption
`in favor of access to court records.” Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d
`1122, 1135 (9th Cir. 2003).
`However, a different standard applies to non-dispositive motions. Kamakana, 447
`F.3d at 1179. “Non[-]dispositive motions ‘are often unrelated, or only tangentially related,
`to the underlying cause of action,’ and, as a result, the public’s interest in accessing
`dispositive materials does ‘not apply with equal force’ to non-dispositive materials.”
`Pintos v. Pac. Creditors Ass’n, 605 F.3d 665, 678 (9th Cir. 2010) (quoting Kamakana, 447
`F.3d at 1179). “In light of the weaker public interest in non[-]dispositive materials, we
`apply the ‘good cause’ standard when parties wish to keep them under seal.” Pintos, 605
`
`
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`ECF No. 208-1 is a transcript of Dr. Biggs’ deposition testimony from February 9
`3
`and 10, 2023. ECF Nos. 208-2 through 208-5 are Plaintiff’s privilege logs. ECF No. 208-
`6 is Plaintiff’s Objections and Responses to Defendant’s Notice of Deposition for Dr.
`Biggs.
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`F.3d at 678. “There may be ‘good cause’ to seal records that are privileged, contain trade
`secrets, contain confidential research, development or commercial information, or if
`disclosure of the information might harm a litigant’s competitive standing.” Mezzadri v.
`Med. Depot, Inc., No. 14-CV-2330-AJB-DHB, 2015 WL 12564223, at *2 (S.D. Cal. Dec.
`18, 2015).
`III. Discussion
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`A. Noncompliance with the Court’s Stipulated Protective Order
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`As an initial matter, the moving parties in ECF Nos. 180, 197, 207, 210, and 213 are
`seeking to file under seal information designated as confidential by a nonmoving party.
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`Where a motion to file documents under seal seeks to protect the confidential
`information of another party, the non-designating party may not have sufficient knowledge
`to inform the Court why the material warrants protection. As such, the Court’s Order
`Entering Protective Order (“Protective Order”) sets forth a procedure where parties seeking
`a motion to file documents under seal must confer prior to filing the motion. Specifically,
`pursuant to Paragraph 22(e), “[i]f the application to file a document designated as
`confidential under seal is being made by the non-designating party, then, upon request, the
`designating party must promptly provide the applicant with a legal basis for the confidential
`designation and the non-designating party must include the basis in the application.” (See
`ECF No. 37 at ¶ 22(e).)
`
`Here, in ECF Nos. 180, 197, 207, 210, and 213, the moving party is not the
`designating party. Yet, the moving parties failed to seek and include a legal basis from the
`designating party as required by the Protective Order. For all future motions to file under
`seal, all parties are directed to read and comply with the procedures set forth in the
`Protective Order. (See ECF No. 37 at ¶ 22(e).)
`B. Failure to Set Forth Good Cause
`
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`Not only do five of the Motions fail to comply with Judge Burkhardt’s Civil
`Chambers Rules (see ECF Nos. 180, 197, 207, 210, and 213), but all six also fail to make
`the requisite showing of good cause.
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`Specificity Required
`1.
`ECF Nos. 180, 197, 207, and 210 rely solely on blanket claims that the
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`redacted information contains “sensitive [and] confidential business information” or
`information “designated as Confidential – Attorneys’ Eyes Only.” (See ECF Nos. 180 at
`2; 197 at 2; 207 at 2; 210 at 2.) No other legal analysis is provided, much less analysis
`specifically addressing the particular portions of each document the parties seek to redact,
`as the Court expects. Accordingly, these Motions fail to demonstrate good cause. See,
`e.g., Beckman Indus., Inc. v. Int’l Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992) (“Broad
`allegations of harm, unsubstantiated by specific examples or articulated reasoning, do not
`satisfy the Rule 26(c) test.”) (quoting Cipollone v. Liggett Group, Inc., 785 F.2d 1108,
`1121 (3rd Cir. 1986)).4
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`Further, a cursory review of the proposed redactions in all filings reveal that few, if
`any, of the proposed redacted portions are likely to warrant filing under seal. For example,
`in ECF No. 210, Kenosha and Gronostaj seek to seal the number of documents on their
`privilege logs (ECF No. 211 at 2). Similarly, in ECF Nos. 180, 194, and 207, Plaintiff and
`Defendant seek to seal the entirety of Dr. Biggs’ deposition testimony (ECF Nos. 181-4,
`195-2, 208-1), many portions of which contain only publicly available information. (See,
`e.g., ECF No. 181-4 at 1–7, 18.)
`
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`2.
`Sealing Plaintiff’s Privilege Logs
`
`In ECF Nos. 180 and 207, Defendant seeks to seal in their entirety exhibits
`comprised of Plaintiff’s privilege logs (ECF Nos. 181-1, -2, -3; 208-2, -3, -4, -5). (ECF
`Nos. 180 at 2; 207 at 2.) Additionally, in ECF No. 210, Kenosha and Gronostaj seek to
`seal information regarding the content of Plaintiff’s privilege logs (ECF No. 211 at 2).
`(ECF No. 210 at 2.)
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`Plaintiff’s 213 Motion is more specific in that it only seeks to seal the numbers of
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`certain subsets of documents in privilege logs and does include some analysis. However,
`the Motion fails to set forth good cause for sealing the proposed redacted information.
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`All parties argue there are “[c]ompelling reasons” to seal the privilege logs but
`support their allegations with only cursory references to “sensitive” and “confidential
`business information” or designations as “Confidential,” “Confidential – Outside
`Attorneys’ Eyes Only,” or “Confidential – Attorneys’ Eyes Only.” (ECF Nos. 180 at 2;
`193 at 2; 207 at 2; 210 at 2.) In its Response in Support of Defendant’s 180 Motion,
`Plaintiff expounds that the privilege logs “contain details of [Plaintiff’s] confidential
`business and professional relationships” protected by the professional conduct code and
`“sensitive internal communications reflecting how [Plaintiff] has prepared for this
`litigation and continues to manage this litigation.” (ECF No. 193 at 2.)
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`However, no party provides any authority to support the argument that general
`information provided on privilege logs merits protection.5
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`In conclusion, the parties may have good cause to file under seal some subset of the
`material they seek to redact in these six Motions; however, the current pleadings do not
`provide enough specificity and authority for the Court to reach such a conclusion.
`IV. CONCLUSION
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`For the aforementioned reasons, the Court hereby rules as follows:
`• The Court DENIES WITHOUT PREJUDICE Defendant’s Motion to File Under
`Seal its Ex Parte Discovery Motion (ECF No. 180). Defendant MAY FILE a
`renewed motion to file under seal any information for which good cause exists
`within fourteen (14) days of the electronic docketing of this Order. Should
`Defendant choose not to file a renewed motion, Defendant SHALL PUBLICLY
`FILE ECF No. 181 in its entirety, subject to the redaction of Dr. Bigg’s address,
`within twenty-one (21) days of the electronic docketing of this Order.
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`The Court acknowledges that it previously sealed Plaintiff’s privilege logs based on
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`agreement of the parties. This decision was reached through an informal conference and
`without legal analysis. (See ECF No. 92.)
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`• The Court DENIES WITHOUT PREJUDICE Plaintiff’s Motion to File Under
`Seal its Response (ECF No. 194). Plaintiff MAY FILE a renewed motion to file
`under seal any information for which good cause exists within fourteen (14) days of
`the electronic docketing of this Order. Should Plaintiff choose not to file a renewed
`motion, Plaintiff SHALL PUBLICLY FILE ECF No. 195 in its entirety within
`twenty-one (21) days of the electronic docketing of this Order.
`• The Court DENIES WITHOUT PREJUDICE Defendant’s Motion to File Under
`Seal its Supplemental Brief (ECF No. 197). Defendant MAY FILE a renewed
`motion to file under seal any information for which good cause exists within fourteen
`(14) days of the electronic docketing of this Order. Should Defendant choose not to
`file a renewed motion, Defendant SHALL PUBLICLY FILE ECF No. 198 in its
`entirety within twenty-one (21) days of the electronic docketing of this Order.
`• The Court DENIES WITHOUT PREJUDICE Defendant’s Motion to File Under
`Seal its Motion to Compel (ECF No. 207). Defendant MAY FILE a renewed
`motion to file under seal any information for which good cause exists within fourteen
`(14) days of the electronic docketing of this Order. Should Defendant choose not to
`file a renewed motion, Defendant SHALL PUBLICLY FILE ECF No. 208 in its
`entirety within twenty-one (21) days of the electronic docketing of this Order.
`• The Court DENIES WITHOUT PREJUDICE Kenosha and Gronostaj’s Motion
`to File Under Seal their Supplemental Brief (ECF No. 210). Kenosha and Gronostaj
`MAY FILE a renewed motion to file under seal any information for which good
`cause exists within fourteen (14) days of the electronic docketing of this Order.
`Should Kenosha and Gronostaj choose not to file a renewed motion, Kenosha and
`Gronostaj SHALL PUBLICLY FILE ECF No. 211 in its entirety within twenty-
`one (21) days of the electronic docketing of this Order.
`• The Court DENIES WITHOUT PREJUDICE Plaintiff’s Motion to File Under
`Seal its Supplemental Brief (ECF No. 213). Plaintiff MAY FILE a renewed motion
`to file under seal any information for which good cause exists within fourteen (14)
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`days of the electronic docketing of this Order. Should Plaintiff choose not to file a
`renewed motion, Plaintiff SHALL PUBLICLY FILE ECF No. 214 in its entirety
`within twenty-one (21) days of the electronic docketing of this Order.
`IT IS SO ORDERED.
`Dated: March 8, 2023
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